The recently passed Truth and Reconciliation Law in Nepal violates international standards, the Supreme Court verdict of January 2, 2014, and also the Interim Constitution and the Comprehensive Peace Agreement (CPA) of Nepal itself.
The last time the government came up with the ordinance in March, 2013, it was totally flawed as serious crimes could also be subject to amnesty.
Reconciliation could be done without the consent of the victims. There was also no guarantee of persecution.
The Supreme Court (SC) thrashed the key provisions of the ordinance and directed that there should not be amnesty for serious crimes including rape, murder, abduction, sexual violence, mental and physical torture and forced evictions. The court recommended the formation of an expert panel to collect recommendations.
This time around the government formed the expert panel, which was given 10 days to submit its recommendations. But it came to notice that the expert panel was forced to submit its report within the 7 days. In spite of the clear recommendations from the expert panel, the government did not abide by its own recommendations. The bill that was brought before the floor of the parliament was totally against the recommendation given by the expert panel, the SC verdict, and also did not abide by the core international obligations of Nepal because the country is a party to several international conventions and human rights treaties. Nepal has a responsibility to respect these obligations.
The TRC bill that has been passed by the parliament and endorsed by the President still includes many flaws. This law is worse than the previously proposed bill which is regrettable.
Section 26 of the current law contains vague language that does not reject amnesty to serious human rights violations including murder, abduction, rape and sexual violence, forced evictions, and mental and physical torture. It leaves open possibility where perpetrators could be given amnesty. Only the section 26 (2) contains exceptions from amnesty from rape. However, under the Nepali criminal code, there is 35-day statute of limitation period on reporting rape.
The law has provisions where serious human rights violations are subject to departmental action only. Even the victims consent for reconciliation has not been made mandatory. It is a serious breach of the transitional justice as it should be totally victim centric process. Without the consent of victim, no reconciliation can be done and any amnesty given. Victims have the primacy in the transitional justice process. They have to decide whether they want to forgive and forget.
Under the Nepalese Interim Constitution, each and every state institution is under obligation to pay attention to, implement and enforce the verdict of the SC. This is their constitutional duty. Bringing this law is a serious violation of such duty.
It is a serious case of contempt of court. The January 2, 2014 verdict of the SC has been dishonored as it clearly mentioned that serious human rights violations and international crime will not be subject to amnesty.
This is a mockery of the transitional justice process. This kind of law is not acceptable to the conflict victims, national and international community. It should not become a process where conflict era human rights violators use it as a means to wash away their sins for committing serious violations, and go scot-free.